Supporters ask court to uphold malpractice caps

Published
12:00 am CST, Thursday, November 13, 2008

SPRINGFIELD, Ill. (AP) - A 2005 law limiting the amount of money juries may award in medical malpractice cases unfairly targets those most seriously injured who deserve the most compensation, lawyers told the Illinois Supreme Court Thursday.

Proponents of the law asked the court not to limit what they called lawmakers' attempt to stem a health care crisis.

The law restricts awards on non-economic damages such as pain and suffering to $500,000 against doctors and $1 million against hospitals. It was aimed at lowering medial insurance rates blamed for driving physicians, particularly specialists, out of the state.

A trial court ruled last year that the law violates the Constitution's separation of powers clause by allowing the General Assembly to restrict deliberations by judges and juries. The Supreme Court will study the matter and issue an opinion later.

"This court should not adopt an absolute limit on legislative authority. People have got to go to the Legislature," said former U.S. Solicitor General Theodore Olson, who is defending a doctor accused of malpractice in the brain damage suffered at birth by 3-year-old Abigaile LeBron. The case is one of three out of Cook County testing the three-year-old law.

"The Legislature is equipped - this court is not equipped - to hold hearings, take testimony, and set the policy for the state," Olson said.

The law not only limits damages, it gives state regulators more power to review and change malpractice insurance rates and tougher oversight of doctors to punish mistakes.

"Everyone has been asked to give something, including those who have suffered injury," said Michael Scodro, solicitor general for the Illinois attorney general.

But the sacrifice is uneven, said Michael Gottesman, a Georgetown University law professor representing Abigaile LeBron and her mother. Past court decisions, he said, have ruled that laws cannot differentiate between levels of injury, which Illinois' does.

The LeBron family's non-economic damages, for example, might far exceed the caps, Gottesman said. In the case of a wealthy person whose injury causes millions of dollars in lost income, he would recover all of it because the law puts no restrictions on jury awards of economic damages.

"Even though the attorney general says health care consumers ought to contribute to the solution, the only people being asked to contribute to this solution are the most seriously injured people - almost by definition the people least capable of making this contribution," Gottesman said.

Under questioning by justices, Gary Feinerman, who represents defendant Gottlieb Memorial Hospital in the LeBron case, said the court must reject Gottesman's argument that the law must be nullified just because caps affect severely injured patients.

Rather, the court must focus on why lawmakers acted.

"The General Assembly had a very good reason. There was a health care crisis and the General Assembly chose a multifaceted solution to that problem," Feinerman said.